Just hours before a panel of prosecutors and former Watergate figure John Dean was set to testify before the House Judiciary Committee, its chairman, Rep. Jerrold Nadler (D-N.Y.), announced that a deal had been struck to make available the “most important” underlying materials that were the basis for report by special counsel Robert S. Mueller III. The Post reports:
The deal, announced by Chairman Jerrold Nadler (D-N.Y.), appears to forestall contempt proceedings against Attorney General William P. Barr, who has been locked in a standoff with Nadler and House Democratic leaders over access to redacted parts of Mueller’s report as well as evidence gathered during his two-year investigation.
Nadler said in a statement that the Justice Department would be “opening Robert S. Mueller III’s most important files to us, providing us with key evidence that the Special Counsel used to assess whether the President and others obstructed justice or were engaged in other misconduct.”
“All members of the Judiciary Committee — Democrats and Republicans alike — will be able to view them,” he said. “These documents will allow us to perform our constitutional duties and decide how to respond to the allegations laid out against the President by the Special Counsel.”
It is not yet clear what is and is not part of the deal. Nadler’s statement refers to underlying materials, but not redacted materials, and seems to be only the “most important” materials. Are these relating to possible counts in which Mueller found all the elements of obstruction of justice? Does it leave out information about Trump and his lawyers? And, if so, what is that and why isn’t the committee getting it?
We do know the deal doesn’t cover former White House counsel Donald McGahn’s testimony. While Nadler is agreeing to hold off on contempt proceedings against Barr and the Justice Department relating to Mueller files, there is no such agreement for McGahn’s testimony.
Former Justice Department spokesman Matthew Miller tells me that “this is a pretty good outcome for Nadler.” He adds, “It’s also an admission by DOJ that precedent was clearly on the committee’s side and a court would have likely determined that.” The Justice Department’s move should tell Democrats several things.
First, it proves that the department and the White House are operating from a position of weakness. They have recently lost two battles in court to prevent the House from obtaining accounting and other financial records. Rather than face criminal contempt, Barr decided to give way here, as well. Even without declaring impeachment hearings, the House has wide latitude to force President Trump and his associates (past and present) to provide both evidence and testimony. The president will whine and his team will bluff, but persistence will pay off for the House investigators.
Second, this should encourage the House to demand McGahn’s testimony and to seek contempt proceedings against him and other witnesses (e.g., former White House communications director Hope Hicks) for noncompliance. It takes effort, but as we saw with those two district court decisions, a remedy can come quickly.
Third, strong supporters of impeachment have put out a false narrative that casts the House as relatively helpless. Far from it. The House can get relief in the courts. Moreover, it seems Barr thinks that being held in contempt of Congress is enough of a threat to pry loose at least some evidence. “At least at first glance, this is a very promising development. It strongly suggests that even Bill Bar has his limits in terms of facing down a threat of being held in contempt by the House of Representatives,” says constitutional scholar Laurence H. Tribe. “This is incremental movement, and the pace is glacial, but the glass, though far from half full, no longer seems entirely empty.”
Fourth, the House Intelligence and Government Oversight committees should follow the Judiciary Committee’s playbook. While national security may be a reason for closed-door hearings, this is no excuse for failure to appear and/or produce any materials. This includes information relating to Trump campaign interactions with WikiLeaks. While Mueller wrote that there was not sufficient evidence of a criminal conspiracy between Trump and Russian figures, he said nothing about a plot involving Trump associates and the Russian cut-out WikiLeaks.
In short, the promise of more materials and the likelihood of forcing reluctant witnesses to testify should strengthen Speaker Nancy Pelosi’s (D-Calif.) hand in holding to her step-by-step approach.